High-elevation workers such as this one at Manhattan's St. Vincent Hospital are protected by a one-of-a-kind law that is currently threatened by industry efforts in Albany.
Of course, few Americans these days would get behind legislative efforts that overtly line the coffers of the insurance industry. It is not surprising, then, that such efforts are often hidden behind neutral-sounding terms like "tort reform" or "fairness in litigation."
One such battle has been playing out in New York State, home to the nation's last remaining "scaffold law." Many of us had thought the most recent reform effort had died in the Senate Judiciary Committee in Albany earlier this year, but a letter last week in the Long Island Newsday (by, get this, the executive director of the "Lawsuit Reform Alliance of New York") suggests the battle is not over.
The Scaffold Law, codified in New York's Labor Law at sections 240 and 241, imposes liability on an owner or contractor for failing to provide basic safety protections for workers in high elevation settings. That's not the contentious part. What has the industry up in arms is that an owner/contractor who violates the safety provision must pay 100% of the worker's injuries even if the worker was partially at fault. And, unlike most on the job injuries, these cases are not limited to the worker's compensation system.
This 100% payment is a departure from most states' tort law, where an injured plaintiff's damages are reduced by the percentage of their fault (called a "comparative negligence" system).
The idea behind the Scaffold Law's 100% liability was to eliminate any incentive for a contractor to shirk his duty to provide a safe environment for high-elevation work. By eliminating comparative negligence as a defense, lawsuits settle faster, injured workers are compensated faster, and contractors quickly learn to conform their practice to safety standards.
Of course, not everybody agrees. Thomas B. Stebbins, the industry hack who wrote the letter above, believes that 100% liability is a travesty of justice that removes the incentive of the workers not to injure themselves. (Yeah, he really said that.) What they really want to do is tie up the courts with years of litigation over how much the worker was at fault, because any delay in litigation favors the defendant.
I'm sure contractors would also like to put these cases back in the worker's compensation system, where workers are paid pennies on the dollar.
One such worker in Manhattan fell 25 feet from a ladder because the owner failed to provide a coworker to hold the ladder. He suffered permanent brain damage from the fall and was awarded $13 million by a jury. According to Michael Rose of New York's construction accident lawyers Hach & Rose, "This case is the perfect example of why the scaffolding law is so important. If the law did not exist, our client would have received about $500 per week, that’s it."
I could find no evidence of any recent reform action by the Senate Judiciary Committee in Albany, but it is certain that the so-called tort reformers are not going to give up.